Two recent postings of abtracts/articles in SSRN's Law & Soc'y: Legal Prof. (the journal edited by Bill Henderson) ought to be considered together. One post from August, here, is by researchers Todd Peppers (Roanoke, Public Affairs [left]) and Christopher Zorn (South Carolina, Poly Sci). It is "Law Clerk Influence Upon Supreme Court Decision Making," meaning U.S. Supreme Court. Its abstract is below the fold. This is the first of a series using multiple research techniques to try to tease out the clerks' decisional influences. In this phase, they focus on that part of the process where one would think their infuence would be least, votes on the merits (as opposed to, for example, taking cert or drafting opinion language). They find that at the least clerks are sounding boards and advisers on the merits. And their own ideological views exert an independent influence on the justices' voting behaviors, even controlling for the justices' own views. I add that, of course, it must be kept in mind that the hiring of the clerks is not a random and independent act--their ideologies are often taken into account both directly and through their references, feeder judges, and mentors. At any rate, the authors go so far as to estimate that the independent effect of the clerks' policy preferences is one-third of the justices' own.

The other more recent and polemical article, linked here, is by Penelope Pether (Villanova, Law [right]) and catchily entitled "Sorcerer's Apprentices: How Judicial Clerks and Staff Attorneys Impoverish U.S. Law" (abstract highlights below the fold). She makes no bones about her wary view of the trend to expand their numbers and roles, in all
sorts of federal courts, in contrast to Dr. Peppers' and Zorn's statement that their findings alone do "not suggest that law clerks are inappropriately wielding influence." Hers is a call to take back the courts.

Their common ground is that both articles find that the law clerks do influence their judges and the system even on the merits of actual decision-making and not just language of opinions and collateral matters. Pether would add that the influence is not scattered or self-correcting (it does not even out over a range of clerks and their political beliefs) but instead tends to be insensitive to the have-nots and thus affect judicial behavior and outcomes in negative and inappropriate ways. It appears that Zorn and Peppers are not ready to make that call yet, but they have staked out a methodology and agenda that may well lead in that direction--particularly since they will turn next to areas where it is already commonly believed that clerks make predictable differences, as in the certiorari process.

In sum, this is an interesting area with more work to be done, and it is useful to have two articles to mull together with their very different methodologies and styles. Abstracts to follow.

The abstract to Zorn and Peppers' article is:

For more than a half-century, legal scholars and commentators have questioned whether Supreme Court clerks wield excessive power over the operations and decisions of the U.S. Supreme Court. Yet to date there have been no attempts to determine systematically if, how, and how much clerks can influence the Court's decision making. Here we begin an effort to do so, focusing first on the most central - and least susceptible to clerk influence - locus of the Court's decision making, the votes of the justices on the merits. Using original data collected on the political partisanship of 532 former law clerks, we assess whether and to what extent law clerk ideology has an independent effect on how Supreme Court justices vote on the merits of a case. Our findings indicate that, even after controlling for justices' own policy preferences, the ideological propensities of their clerks exerts an independent influence on the justices' voting behavior; we estimate the magnitude of that effect to be roughly one-third that of the ideology of the justices themselves. While this finding alone does not suggest that law clerks are inappropriately wielding influence, it suggests that, at a minimum, the justices rely heavily upon their clerks as sounding boards and advisers in deciding how to vote on the merits of cases.

The most relevant part of Pether's abstract is:

In Sorcerers' Apprentices, I document the phenomenon of the de facto delegation of the vast majority of Article III judicial power to judicial clerks and staff attorneys, demonstrating that these newly-graduated lawyers disproportionately decide cases against "have-nots." Using the work of the sociologist of the professions, Pierre Bourdieu, and a wide range of sources in which Federal Appellate judges have gone (more or less) “on the record” about their mistrust of the work of the people to whom they delegate their power, the article explores why clerks and staff attorneys judge the law's "others" the way that they do. In the face of reluctance by the Circuit Courts to undertake the structural changes to their work practices that would address the root causes of the delegation of federal judicial power, the article suggests "grass roots" reforms aimed at ensuring that delegated Article III power is exercised safely and fairly.

Her article will appear in vol. 39 of the Arizona State Law Journal in 2007.